Effective September 30, 2017, California’s Office of Environmental Health Hazard Analysis (OEHHA) will require warnings for consumer products containing furfuryl alcohol under the Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65). Furfuryl alcohol is a food contaminant that can occur in a potentially significant number of thermally processed foods because it forms as a result of the Maillard reaction that gives many foods a characteristic brown color. As has been the case with other food contaminants listed under the Proposition 65, we expect private litigants to file lawsuits after the warning requirement becomes effective. Companies marketing or manufacturing food products that undergo a Maillard reaction should consider whether furfuryl alcohol is forming and should evaluate their potential obligations and exposure in anticipation of the September 30 effective date.

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Food companies should be aware of a recent, new wave of Proposition 65 (Prop 65) challenges targeting acrylamide in food. In the past year, private litigants—particularly the Center for Environmental Health (CEH)—have filed numerous 60-day notices indicating their intent to sue food companies that allegedly fail to warn consumers of harmful levels of acrylamide under the “bounty hunter” provisions of California’s Proposition 65 (Prop 65). These 60-day notices target snack products made from potatoes as well as prune juice, black olives, tofu scramble, and cookies. Below, we provide a refresher of the acrylamide Prop 65 litigation as well as a summary of these recent 60-day notices. A food company doing business in California is well advised to proactively self-assess its exposure to potential Prop 65 liabilities.

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Effective on August 30, 2018, California’s Office of Environmental Health Hazard Assessment (OEHHA) will adopt new regulations regarding the manner in which clear and reasonable warnings should be given under the Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986). By way of brief background, Proposition 65 requires businesses to provide “clear and reasonable warnings” when they knowingly and intentionally cause an exposure to a listed chemical to any individual in California. Under the current Article 6 to Title 27 of the California Code of Regulations, the “clear and reasonable warnings” must be reasonably calculated, considering the alternative methods available under the circumstances, to make the warning message available to the individual prior to exposure.

OEHHA finds the current regulations lack the specificity necessary to ensure the public receives useful information about potential exposures. OEHHA intends to provide more useful information to California consumers through the new regulations. One of the many notable changes is the requirement that the warning needs to contain the name of one or more of the listed chemicals in the consumer products. OEHHA also tries to clarify the relative responsibilities of different parties in the supply chain to provide consumer product exposure warnings. Businesses have the option of continuing to comply with the current version of the regulations until August 30, 2018, or comply with these new regulations in advance of the effective date.

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We previously reported that on March 25, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a revised proposed regulation to amend the requirements for “clear and reasonable warnings” under the Proposition 65. On May 18, 2016, OEHHA published a slightly revised version of the proposed regulation.  This most recent version includes additional changes to the March 25 proposed regulation based on the additional comments the agency received. While most of these revisions made by OEHHA are non-substantive, we encourage food and beverage manufacturers, distributors, retailers, and restaurants to closely examine the proposal and assess how the new regulation will affect their compliance with the Prop 65 warning requirements. Comments specifically addressing the changes made by OEHHA are due on June 6, 2016.

We provide a brief overview of the new proposal and highlights a few changes subject to public comments.

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We previously reported that beginning May 11, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) will start requiring warnings for consumer products containing BPA under the Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65).  On March 17, 2016, OEHHA published two notices related to the BPA warning requirements. In the first notice, OEHHA proposes to establish a Proposition 65 Maximum Allowable Dose Level (MADL) or safe harbor level for BPA of 3 micrograms (μg) per day for dermal exposure from solid materials.  Comments on the dermal safe harbor level are due on May 16, 2016.

Separately, OEHHA proposes an emergency regulation to allow the temporary use of a standard point-of-sale warning message for BPA exposures from canned and bottled foods and beverages.  This would relieve manufacturers of the duty to provide warnings on product packaging for those products that must be labeled by May 11th. While a deadline for comments on the proposed warning message was not provided, under California’s Government Code section 11349.6, interested persons only have five calendar days to submit comments. As such, comments on the point-of-sale warning message are due on March 22, 2016.

This post summarizes the key components of the two notices. Click here to read more.